Procurement and Compliance

Published: 8th May 2008

Emm G Lianakis AE v Dimos Alexandroupolis (C-532/06). Judgment of January 24, 2008.

The case before the ECJ arose from two sets of proceedings in Greece. The contract notice referred to the award criteria in order of priority:

(1) proven experience;

(2) manpower and equipment; and

(3) the ability to complete the project by the anticipated deadline.

During the evaluation procedure, the project award committee defined the weighting factors and sub-criteria in respect of the award criteria, and set weightings of 60 per cent, 20 per cent and 20 per cent for each of the three award criteria referred to in the contract notice.

It was held that:

1) the criteria set concerned the tenderers' suitability to perform the contract, and therefore did not have the status of "award criteria". Therefore, a contracting authority was precluded from taking them into account as "award criteria" . Other "qualitative selection criteria", needed to be taken into account and should have been set.

2) As regards the subsequent stipulation of weighting factors in respect of the award criteria referred to in the contract documents or contract notice, potential tenderers should be aware of all the elements to be taken into account by the contracting authority in identifying the economically most advantageous offer, and their relative importance, when they prepared their tenders. A contracting authority could not apply weighting rules in respect of the award criteria which it had not previously brought to the tenderers' attention.